I am Pete Holloway I'm a senior vice president with Burton Watson and
a financial advisor and sort of
a financial planner as always it's my great pleasure to welcome you to on money as
a financial advisor people come to me with sometimes small some Sometimes large
sums of money and part of my process is I've got to find out about them what
they're looking for and so forth and one of the questions that I always ask is do
you have
a will these people come to me with money and honestly forty percent of them do not
have wills it's absolutely vital that we the people have
a valid will because all that money parts of it could disappear if it's not if they
don't have one my guest today we're going to be discussing wills is Lester has he
had as a willing native has a B.A.
From Vanderbilt and has got his law degree from W.V.U.
And he's
a trial attorney with Bachmann has Bachmann and garden since one thousand nine
hundred sixty six I mean
a simple judge in the city of willing president of the County Bar Association read
all through all these things his bio I'd rather talk to judge us then go through
your bio thank you for you agreeing to be with us today thanks for having me and
let's start what is
a Will why is it important and what does it and what does it not do. Well
a will is a written document by which
a person can make sure that whatever assets that he owns at the time of his passing
will go to the people that he wants them to go to. What it is not is
something that controls a jointly owned property for example
a husband and wife man and property and often real estate is and jointly was right
at survivorship. Because of that special language and indeed when you buy
a home the real estate when one of the spouses dies does not
proceed through probate it's not part of your estate. Handled separately
and so a lot of things that people would otherwise think can be passed on with
a will are not
a joint bank account for example or. Pension or an IRA account if you name
a specific beneficiary or
a life insurance. Policy that you may have on your life if you name
a specific beneficiary none of that goes through what they call the probate process
and is not technically part of your estate probate is one of those words that
scares people
a lot what is probate used to be expensive it's not as expensive anymore tell us
why it's important Well for one thing. With regard to the cost in certainly in
my lifetime I think the West Virginia legislature has done
a good job of simplifying the probate procedure which is simply the procedure that
you used to administer in
a state to make sure the assets in the estate go where they're supposed to go and
to make sure that expenses of the estate are paid the way they should be paid. But
it's really been sampler fied and it is
a lot less expensive then than it used to be there used to be kind of set
fees that people charge for probating in a state or writing
a will for that matter now it's pretty much based on the time that the lawyer has
to spend but it's not unusual for a you know
a typical state and I'm administering for
a family to cost any more than fifteen hundred dollars and that involves you know
a fair amount of assets. Writing
a will I guess you know that can vary from warrior to lawyer and didn't but it
could I think the range Pete would be anywhere from one hundred fifty dollars on up
to if it was a complex Well it would you know you could get
a lot higher than that but typically not I think most lawyers in Wheeling anyway
recognize that we're all. Not that big a community and you know
a lot of the sort of boilerplate and I mean to sound that way well
a good bit of it is and I want to make one thing clear right now because I am very
firm believer in using professionals that you don't go to how to write
a will dot com or wills for Dummies that you really should go to
a an attorney because if something goes even if you write the will and something
goes wrong with it because I want to talk about what happens if you don't have
a will or you have
a will that is not written appropriately what happens if you don't have
a will that's written appropriately if you do it yourself. The court won't
recognize it is a valid will a valid instrument
a valid document by which the assets in your estate are to be transferred to
somebody. And so then what's the interest and goes to other lawyers and then the
expense begins to pick up well for one thing you're intestate if intestate means
that you die without
a will and if you die we'll just start there if you die without
a will. There was no written document saying how you want your
assets distributed so the West Virginia legislature is has adopted
a scheme of distribution. And generally it follows
this arrangement if you're married and you do not have children or
if you do have children and you and your wife don't have any other children by
another spouse everything according to the statute if you don't have
a will goes to the surviving spouse. If you die with the surviving
spouse and that's surviving spouse had
a child by another marriage or if you had
a child by another marriage then there's
a percentage that the statute sets out that the surviving spouse gets. If there is
no surviving spouse then the statute says in the absence of
a will that everything would go to the children if there are children or the heirs
of the children the children's children grandchildren if you will and if there are
no children. Then everything would go to the parents of the person that died
or the survivor of the parent that died if there are no living parents
everything gets divided among generally among brothers and sisters.
And then it goes on down the line if there's nobody at all no airs at all then it
does go to the state of West Virginia and many people are concerned that the
state's going to take their their. Whatever assets they have. In the absence of it
they will Plus this is an expensive process just locating all those individuals and
is going the money up front is that I maybe maybe the bottom line well that's. The
best way to put it really OK Weston it don't the next step I decide I want to get
a will and I approach you as an attorney what kinds of things should I show up with
and what kind of questions should I be prepared for you to ask me I think most
lawyers and I know I'm one of them have
a form we sometimes ask class to fill out which ask them to
a dentist what assets they have because we want to make sure we cover everything
real estate not only our home place but other real estate you mine as well bank
accounts itself will to bring in the information about the vanity of the bank
account. Certificates of deposit we need to know about.
IRAs pension plans all of that. Also we need
to know information about the family if there are any children for example if there
are children that are minor kids. We often recommend that the
person writing the will nominate someone to serve as
a guardian of those children until the children reach eighteen years old. That way
they get to pick who the guardian is going to be because if. If they don't that
some judge somewhere
a circuit judge is going to make that decision those are some of the things that.
We want to know we also want to know when we talk to them. If the client wants
to leave everything to
a spouse and which is often the case. I always tell people you've got to think
about giving things away twice really because. That will zip that we write right
now if i write your will right now nobody's going to know about that except you and
me it gets recorded nowhere doesn't get put in the court house that only
happens in the will is only recorded at the courthouse when you pass away and the
tween now and the time you pass away you might have revised your will on
a number of occasions. They only want the last month or last and most recent will.
So we we ask people to say what if your spouse what if your spouse pretty deceases
you I mean you've got
a plan for that eventuality possibility and and so we get an alternate
beneficiary there for the spouse. For children oftentimes the classic case is
I want to leave everything to my wife but if my wife Prita ceases me I want
everything to go equally in equal shares to my children my my two children well you
have to go further and decide what if this spouse pre deceases
How how is it handled as is between these two kids particularly if one of the
children happens to also had God forbid died for you and the person is going to
have to make
a decision about whether he wants to say. I want the survivor of my children
to take the full share or whether he wants to say I want my son to take fifty
percent of my daughter fifty percent but if my daughter pre deceases her two kids
who will share her share so would in that event be divided fifty percent to
the son who. Outlived the father and twenty five percent to each of the two
kids the daughter of the deceived gets caught you can't so you want to cover all
the bases Yeah you do want to do it and one of the thing about this is it should
stay stay current So if you have two children out there and one arrives and you
don't identify them what happens that the West Virginia legislature took care of
that too is
a matter of law that child is going to be protected OK on his Will one of the other
things that you have to be concerned about we talk with clients about is naming an
executor. Quite often it's
a surviving spouse not always. Sometimes it's a child
a lot of times it's a bank trust company it doesn't have to be
a human being. And as with the specific bequest in
a will it's always good to have
a backup. I would name my wife as an executive or of my state but
I should also provide in there that if my wife pre deceases me that. So and so will
be the alternate executor and be appointed in her absence or if something happens
that she has on able to perform or duties I think it's important that the person
asked the person's permission to name them executor to because it is
a big job well it is and we recommend that although
a lot of times the question arises when we finish it will if I hand the finished
Will to you your will I know our law firm and I think
a number of others as long as it's not
a significant change will not make any charge for creating
a new a new will. If if you want to eliminate
a person from a will for as an example and so it's not unusual for
a person to have five or six wills Ivory's lifetime because of changing
circumstances and only the last one is the one that says it validly recognized by
the court there is no requirement to name for example every family
member as
a beneficiary of your estate every family also has someone is going off the rails
Well that happens in it happens more than you'd like to think. And there is there's
no magic about eliminating or even
a child really who's gone astray from from the will you cannot
eliminate as surviving spouse and I'll get into that
a minute to say they they're protected by that certain rights I'm in legislature.
But it's not unusual to change to change it will even if it's just to name
a new executive order or
a new exam alternate executive or you know the executor may have just said they
can't do it anymore passed on or whatever so that's right that's right I should
talk a little bit about what's required to have
a valid will. And the legislature has decreed that it has to be
in writing. And it has to be signed by the person who's making the will
and it also has to be witnessed by two witnesses at least two witnesses who
are in the room with the person that's signing the will. All
everybody together at the same time unless all three of them are there together.
Technically is not
a valid will and would not be recognized by our court system and in West Virginia.
And by the way you've been talking about the legislature if someone from Ohio or
from Utah is watching this program there are state law on Wills is probably going
to be very close but there may be some some dissimilarities to would that be
correct that's
a very accurate way of putting it and there's I I don't I don't practice in any
other state all right. I will written in West Virginia for a no I have
a resident for example. Is is
a valid will if it complies with our West Virginia law on how wills are required to
be made. And we changed switch subjects just
a little bit because that will obviously is very very very important there are two
other documents that. When you're getting that will that most people I think should
look at and should really just get as
a matter of course and they're called one to call the power of attorney and the
other is
a medical power of attorney advanced directive and there are some differences there
may be can go into that but why isn't it what is the power of attorney and why is
it so important well let me start with a medical power of attorney and we call it
a medical power of attorney and living will that gives someone you're allowed to
nominate someone to make medical related decisions for you in the event that you
are unable to make those decisions yourself. Doctors Hospitals
surgical treatment nursing care. All of that we
were pulling the plug and there's some specific language we use for pulling the
plug the legislature in West Virginia has said that I can nominate you as
person to have my medical power of attorney and you can make the decisions about my
medical care in the event I'm unable to do so myself and in the event that.
Physician along who has personally examined me along with you make the decision
that I am in a terminal state or in
a persistent vegetative state that you're allowed to tell the doctors to as you
put it pull the plug. And the only thing that that the person that I
would want done is to be provided medication to be free of pain and to remain
comfortable but that I do not want any life prolonging devices.
Put on me and obviously this would be
a discussion that you would have with the person who is your medical power and say
Oh that's right you know that you know in this case this is what has happened my
father and it made things very very easy for all of us Well I've I bet I've written
five hundred will see and I've never met anybody yet they didn't want to medical
private turning in
a living will and frankly I just throw those in because it's it's sort of what we
call border plate language really except for the name and address and phone numbers
. Of not only the person who is a nominee but again
a back up if you try to original person is not available I think that also anymore
because of the new HIPAA rules on confidentiality of patient records.
Doctors are reluctant to even give family members sometimes copies of medical
records unless there's
a. Medical private attorney with says that they can do so. So it's kind of
important and we we advise our our clients to give that medical care of attorney
not only to their doctors but of course to any hospital that you might have to go
to for treatment. In Just something and it's something that people don't like to
talk about it you'd better do it right from the V.A.
I mean set it up properly now because you know if you're not if you're in you know
terminal condition. You know you have no voice you have no voice left so you need
so much to me your advocate and the doctors I think they still have to comply with
the Hippocratic Oath which means they have to try to keep you alive unless unless
you have
a document like this it would allow them to do otherwise. You ask about the other
kind of power of attorney Pete and that's what we call
a durable power of attorney and that pretty much covers. Business decisions that
have to be made by someone particularly if they're not competent to make the
decisions. Unable to make the decision for whatever reason and it
covers the waterfront in and things that you can give somebody the right to do if I
wanted to give you my durable power of attorney I would let you I would
specifically state that you had the right to do whatever and with my real estate
with my bank accounts to pay bills and do whatever with the money. Even give it
away as
a matter of fact now that you're permitted to do. File tax returns if our claims.
Just anything of a business nature we used to be able to do this with
a pretty simple document one or two page document but in two thousand and twelve I
believe it was our West Virginia legislature revised the whole durable power of
attorney and law and now it's it's it's kind of expensive it's probably
a couple hundred three hundred dollars or so to prepare these because they're
they're complicated but it's
a form that the state of West Virginia now requires in order to. Cut down
on the abuse by an agent who would receive a power of attorney from someone under
a disability and you know be taken advantage you can write checks on
a person's account and yeah and check again with both the medical care and the
power to anyone and warm the person you're my power of attorney and it's got to be
someone you trust absolutely absolutely and it also requires
a backup. OK now I want to we just have
a couple minutes left what are some common mistakes that people are misconceptions
that people know about wills that you know that well I mean the cost of
a number will of course is one thing. Sometimes people think that their will that
they're creating now has to be recorded somewhere. And as
a think of explained it does not get recorded that doesn't get recorded till you
die and then the last one gets recorded so nobody nobody in the whole world except
you and your client know what's in the will. There is there is
a statute which allows a person to create a handwritten will that's called
a hole the graphic will. And the statutes are pretty clear that
number one it has to be wholly in the handwriting of the deceit and
secondly there is no requirement for any witnesses and.
And thirdly it has to be pretty clear as to what the intent of the the scene
was and how he wanted his estate distributed it's a it's
a mighty risky undertaking for somebody without
a lawyer you know perfectly clear I think is the key or the key words because if
there is the slightest way of disputing what this means it's often it's you know
it's right back in the courtroom and you get people to Beijing about it and that
the meter is running the classic example that I can remember and it's been
a long time since I was in law school but. Somebody wrote
a well which simply said all to wife and sign his name and it was recognized as
a valid will. But many many times the courts will say that it's it's not
a valid will because the intent is not clearly set forth in the written document
which I want to thank you for your time this is
a great discussion and maybe we'll have you back some day and go into
a little more detail on all this and I want to thank you all and I know we will be
seeing you next week have a great week.